Guidelines for the promulgating of rules and regulations by an administrative agency

Guidelines for the promulgating of rules and regulations by an administrative agency

Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., Court of Appeals, 2015 NY Slip Op 05514

In this case the Court of Appeals addresses the separation of powers doctrine in cases where a legislative body delegates to an administrative agency the power to “fill in the details” of the legislation by adopting rules and, or, regulations. 

The basic standard: the rules or regulations adopted by an administrative agency to implement a statute may not be inconsistent with the statutory language nor inconsistent with the underlying purposes of the legislation authorizing the promulgation of such rules or regulation.

The genesis of the case was the New York City Taxi & Limousine Commission’s [TLC] efforts to replace the Checker cab -- "the iconic taxi of yesteryear "– with “an iconic Taxi of Tomorrow” [ToT] by adopting certain rules setting new standards for such vehicles.

An association of medallion owners and an individual owner of a taxi fleet commenced a combined CPLR Article 78 proceeding and declaratory judgment action, seeking to invalidate the ToT rules and obtain a related declaration. The complaint alleged, among other things, that the TLC lacked authority to enact the ToT rules and violated the separation of powers doctrine in doing so.

Supreme Court held that the TLC had exceeded its authority under the City Charter and had violated the separation of powers by intruding in the City Council's domain. The court then declared that the ToT rules were invalid [42 Misc 3d 324]. The Appellate Division reversed the Supreme Court’s decision [see 121 AD3d 21].

Citing Boreali v Axelrod, 71 NY2d 1, the Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the issues of delegation of power and separation of powers overlap and are often considered together, noting that “if an [administrative] agency was not delegated the authority to enact certain rules, then it would usurp the authority of the legislative branch by enacting those rules,” explaining that “[t]he constitutional principle of separation of powers . . . requires that the [l]egislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies." Further, said the court, “as long as the legislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency's role.”

In Boreali, the Court of Appeals set out four "coalescing circumstances" that are non-mandatory, somewhat-intertwined factors for courts to consider when determining whether an administrative agency has crossed the hazy "line between administrative rule-making and legislative policy-making:"

1. Did the agency do more than "balanc[e] costs and benefits according to preexisting guidelines," but instead made "value judgments entail[ing] difficult and complex choices between broad policy goals" to resolve social problems?”

2. Did the agency merely fill in details of a broad policy or "wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance?"

3. Was the legislature unsuccessfully in reaching reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve?

4. Whether the agency must use its special expertise or competence in the field to develop the challenged rules or regulations.

In this case the Court of Appeals concluded that “[g]iven the broad statutory powers granted to the TLC to set policy as guided by enumerated safeguards and guidelines, the New York City Taxi & Limousine Commissiondid not exceed its authority or intrude on the City Council's domain in violation of the separation of powers doctrine by enacting the ToT rules.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05514.htm

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee
2015 NY Slip Op 04892, Appellate Division, Third Department

An internal investigation by the Division of State Police concerning missing evidence resulted in misconduct charges being filed against a State Trooper [Trooper] for allegedly failing to obey a lawful order to truthfully answer questions and knowingly making a false entry in official records. The Division of State Police Hearing Board found Trooper guilty of the two charges and recommended a penalty consisting of a 60-day suspension without pay, a one-year disciplinary probation period and a letter of censure.

Trooper, however, was shown a determination already signed by the Superintendent of State Police imposing the penalty of termination from his employment and was told that he had 10 minutes in which to resign or he would be terminated.

Trooper resigned but subsequently commenced a CPLR Article 78 proceeding seeking to be reinstated. Supreme Court transferred the matter to the Appellate Division for review of the question of  “substantial evidence” supporting the findings of the Hearing Board with respect to Trooper's being found guilty of the charges filed against him.

Initially the Appellate Division considered the question of the Trooper’s resignation, commenting that a resignation "would ordinarily be beyond [its] review,” but noting “exceptions exist where . . . the resignation was allegedly ineffective and involuntary,"* citing Melber v NYS Education Department, 71 AD3d 1216.

As it was undisputed that the Superintendent had signed a written decision terminating Trooper’s employment, which document was shown to him and Trooper was told that he had 10 minutes to accept an "option" of resigning, the Appellate Division ruled that “under the narrow circumstances” of this case Trooper was effectively terminated by a final agency action when he was handed the signed termination document.

Turning to the merits of the issue of “substantial evidence,” the court sustained the hearing panel’s determination as to Trooper’s guilt with respect to the charges filed against him, explaining that “credibility determinations are for the administrative factfinder when conflicting proof is presented.”

Although Trooper offered explanations “for some of the many discrepancies” in his testimony, the Appellate Division said that “this created a credibility question which was resolved against him” and substantial evidence supports the administrative determination.

As to the penalty imposed by the Superintendent, the court said “we have observed that ‘a State Trooper holds a position of great sensitivity and trust and a higher standard of fitness and character pertains to police officers than to ordinary civil servants," citing Bassett v Fenton, 68 AD3d at 1387-1388. The court said that the penalty imposed, termination, did not shock its sense of fairness in view of findings of Trooper’s “repeated false statements where the underlying matter implicated missing evidence, together with [Trooper’s] failure to accept responsibility even when confronted with contrary documentary proof.”

* Concerning the issue obtaining an "involuntary resignation," in Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals  pointed out that threatening to do what the appointing authority had a right to do -- in this instance filing disciplinary charges against the employee if the employee did not submit his resignation from his position -- did not constitute coercion so as to make the resignation involuntary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04892.htm

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The 2015 edition of The Discipline Book, a concise guide to disciplinary actions involving public officers and employees in New York State, is now available in two formats - as a paperback print edition and in an electronic [e-book] edition. For more information click on
http://thedisciplinebook.blogspot.com

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The 2015 edition of the Discipline Book

The 2015 edition of this concise guide to disciplinary actions involving public officers and employees in New York State is now available in an electronic [e-book] edition. For more information click on http://thedisciplinebook.blogspot.com/

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Click on text highlighted in color  to access the full report

Georgia resident charged with sealing over $200,000 in pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Richard L. Cook III, 57, a resident of Atlanta, Ga., with the crime of Grand Larceny in the Second Degree, a class C felony, in Albany County Court. Cook is charged with stealing over $200,000 in pension payments from the New York State and Local Employees Retirement System paid to his deceased mother, Yvonne Powell, a New York State pensioner who died in 2009.

http://www.osc.state.ny.us/press/releases/june15/062215.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062215release

Former clerk-treasurer convicted of stealing $50,000 of the village’s funds

Former Village of Riverside clerk-treasurer Kristina Johnson was sentenced to jail time for repeatedly stealing village funds to cover her household expenses. State Comptroller Thomas P. DiNapoli announced Johnson was sentenced to 60 days in jail, five years probation and ordered to pay full restitution of $50,000 to the village.

http://www.osc.state.ny.us/press/releases/june15/062415.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062415release

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

2015 NY Slip Op 04949, Appellate Division, First Department

The husband [Son] and his former spouse [Daughter-in-Law] stipulated in a settlement, incorporated by reference, but not merged, into the judgment of divorce, whereby Daughter-in-Law waived her rights to receive payments as the designated beneficiary of her former mother-in-law's New York City Employees' Retirement System [NYCERS] pension plan.

Supreme Court granted Son’s motion to, among other things, direct Daughter-in-Law“to disgorge payments she received as the beneficiary of Son’s mother’s NYCERS pension plan. Daughter-in-Law appealed but the Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that Daughter-in-Law’s reliance on her argument that the waiver violated the Federal Employee Retirement Income Security Act's (ERISA) anti-alienation provision* was misplaced as 29 USC § 1003[b][1] provides that “The provisions of this subchapter shall not apply to any employee benefit plan if ,,, (1) such plan is a governmental plan” as defined in 42 USC §1002(32).** 

As NYCERS is a government plan of a political subdivision of a State, the provisions of ERISA cited by Daughter-in-Law in support of her claim did not apply. Thus, said the Appellate Division, Supreme Court “correctly applied standard principles of contract interpretation to the stipulation, as it [was] a settlement agreement in a divorce action.”

The provision in question, titled "Retirement Funds," said the court, evinced an intent to waive the parties' rights to each other's retirement funds. Further, noted the Appellate Division, the clause in which Daughter-in-Lawwaived her right to such benefits included her waiver of "any and all pension funds set up during the marriage in [Daughter-in-Law’s] name by . . . a member of [Son’s] family." This language, said the court, evinced a related intent by Daughter-in-Law to waive her rights to Son's relatives' retirement funds, including her rights to her former mother-in-law's NYCERS pension benefits.

* 29 USC § 1056[d][1] provides that “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.”

** 42 USC §1002, Subdivision 32, provides that the term “governmental plan” means a plan established or maintained for its employees “by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04949.htm